Elusive Justice:The Maasai contestestation of land appropriation in Kenya. A historical and contemporary perspective

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Elusive justice:
Koissaba Ben R. Ole
Ph.D. Candidate
Institute on Family and Neighborhood Life
Clemson University, SC
bkoissa@g.clemson.edu
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ABSTRACT
For the Maasai people of Kenya, land goes beyond being an economic asset, it serves to provide social capital in form of social status among the community, cultural and religious identity. The historical dispossession of land by colonial powers through legal regimes and the infamous 1904 and 1911 Maasai agreements, and subsequent post- independence land related laws led to serious losses of land by the Maasai. The legislations of land in Kenya after independence in 1963 created individualized land titles through the subdivision of communal land which has exacerbated uncontrolled sell-off of the land through the willing buyer willing seller policy and corruption by government land officials and group ranch committees. By drawing from personal field experiences, archival research and oral narratives, this paper seeks to examine historical and contemporary Maasai land appropriation and how local legal and international human rights mechanisms can be used by the Maasai the Maasai to address the elusive justice of historical and contemporary injustices on land.
Key words: Maasai, human rights, colonialism, justice, indigenous people, dispossession.
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LIST OF ACRONYMS
EACJ East African Court of Justice
ECF East Coast Fever
FAO Food and Agricultural Organization
GOK Government of Kenya
ICC International Criminal Court
ILO International Labor Organization
KADU Kenya African Democratic Union
KANU Kenya African National Union
KLDP Kenya Livestock Development Project
KLA Kenya Land Alliance
MCSF Maa Civil Society Forum
MRG Minority Rights Group
NGOs Non- Governmental Organizations
NLC National Land Commission
NLP National Land Policy
ROK Republic of Kenya
SFT Settlement Fund Trustee
UNDP United Nations Development Program
UNDRIP United Nations Declaration on the Rights of Indigenous People
UN United Nations
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1.0 INTRODUCTION
The arrival of the colonialists in Africa in the late 1800s and beginning of 1900s ushered in new and devastating century long governance and economic systems which were not in tandem with the indigenous systems. This from the advent of colonialism to-date has made the colonial history one that is characterized with the infringement of the rights of the Native communities in Kenya. The most affected indigenous community was the Maasai who prior to that roamed the plains of East Africa1 in search of pastures and water for their livestock. The boundaries of their territories as described by the British followed the line of the Great Rift Valley from Kenya to Tanzania. The demand for land for settlement by new settler community made the Imperial British government to impose laws on the Natives with the sole of objective of expropriating the land to settle down the settlers on the most arable land in central Rift Valley that was mostly inhabited by the Maasai and the Kalenjin which had a cool climate and absence of large population over large areas and some parts of Central Kenya (Morgan, 1960).
According to Morgan (1960) the British convinced Lenana (Olonana2) a Maasai medicine man to sign an agreement that was to move the Maasai from their land in the North of the Rift Valley to create room for what came to be called the White Highlands. In the real sense, this was not an agreement but a way to forcefully evict the Maasai (Hughes, 2006a). Demand for more land for new settlers in the new British protectorate, further made the British abrogate the first agreement that had guaranteed the Maasai of no further moves, and once again forced Lenana on his death bed to sign another agreement in 1911. The Maasai contested the moves first by filing a case in 1913 which they lost on a technicality and later in 1932 in a memorandum presented during the then Kenya Land Commission (Kanchorry, 2006). The Maasai later on during the independence conference held in London in 1962, presented a petition to the British government seeking guarantee that their interests to secure security of tenure of the land they held in the Southern Reserve as well as being given first priority to own land that the British settlers would leave an attainment of independence. While the Imperial administration promised that the rights and security of tenure for the lands that the Maasai lived will be secure, they never guaranteed that land that was expropriated
1Partitioning of East Africa put the Maasai speakers in the British Protectorate (Kenya) and the German East Africa (Tanganyika and later Tanzania) respectively.
2 According to Maasai traditional leadership structure Olonana had no traditional mandate to sign off any land. His traditional role as a medicine man was to advice on traditional rituals.
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through the Agreements would revert back to the Maasai3. This was left for the incoming African government to deal with
On attainment of independence in 1963, the African post-colonial regimes adopted colonial legislations on land and further enacted more legislation that were unfriendly to the Maasai and in general the pastoralists which led to further appropriation of and. The abuse of power by the presidents and their appointees saw more land appropriated through Group Ranches and Trust Lands which lead to massive subdivision and individualization of land; this process only benefited the political elites and the wealthy. Most of the appropriation and annexation of Maasai territory was done contrary to the laid down laws and in contravention of Universal Human Rights statutes.
The appropriation of land from the Maasai and other communities by successive Kenyan regimes is a clear case of the infringement of the human rights of the communities who originally owned and used the land for various purposes that contributed to their survival. The legal regimes that have been used by both colonial and post- colonial regimes were and are still an infringement of the rights in that property rights are natural and not conventional. The laws and policies were not justifiable because they did not respect natural rights of the aboriginal communities and that no law should abrogate the natural law of life, liberty and property. The rights of the Maasai and other indigenous communities to own and control their lands and territories have continually and severally been infringed through the disregard and lack of recognition that property rights are unalienable.
With increased levels of awareness, thanks to globalization, there has emerged a vibrant civil society movement that has since the late 1980s started to examine the processes through which Maasai land had been appropriated and in consultation with other Indigenous people from other countries started to agitate for redress of both historical and contemporary injustices on the land. While the processes are known to members of the civil society and the Maasai in Kenya, most of what has been done has not been adequately documented except as organizational reports.
After 50 years of independence, land grievances have continued to be the main cause of ethnic strife that has resulted clashes that have led to loss of life and property mainly in the Rift Valley, Coast and North Eastern parts of Kenya. Since the advent of the multiparty system, incidents of ethnic violence have peaked during the election years - 1992, 1997, 2002 and 2007. 1997 saw a spate of clashes in the Likoni division of Mombasa
3 These rights were never secured after independence as new legislations precipitated more land expropriation through the Land Act, Group Representative Act, Forest Act, and the sub-division of land that was communally owed into individual plots contrary to the traditional land use and land rights of the pastoralists Maasai.
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District4. In Likia, where most land belonged to Kikuyus in the early 1990s, local Kalenjin politicians reminded people of their past ownership of the land. In 1992, the so-called ‘Kalenjin Warriors’ began burning Kikuyu houses and grabbing land. According to the United Nations office for the Coordination of Humanitarian Affairs, Land-related grievances were among the underlying causes of the violence that followed Kenya’s disputed presidential election results in 2007 (IRIN, 2013). Most recent incidences in Baringo, Mpeketoni, Tana River and Marsabit are said to be related to historical injustices on land as well as resource conflict which are ethic based
The goal of this case paper is to explain the history of Maasai land appropriation from 1904 to the present day, to analyze the land appropriation legal (regulatory) and policy frameworks that contributed to land appropriation from a human rights perspective; and provide policy recommendations from a legal (regulatory) and human rights perspective to readdress Maasai loss of ancestral land. The second goal of the study is to present the Maasai loss of land from the own insider perspective. By presenting the Maasai perspective of continued land appropriation, the study seeks to contribute to the national dialogue on historical injustices as well as the Truth Justice and Reconciliation (TJRC) process thus facilitating possible dialogue
2.0 THE COLONIAL COMMON LAW AND LAND APPROPRIATION
In Africa, like elsewhere in the world, at the dawn of the 18th century the British used deception and, more importantly, their military strength to alienate land to British settlers at expense of the local populations (Vambe, 1972). Kenya was officially declared a British Protectorate on June 15th 1895, and declaration marked the beginning of massive land take over from the natives to create settlements for the British settlers (Syagga, 2011). With the Declaration of Protectorate, the stage was set for the systematic expropriation and exploitation of native lands. Keen to predicate their actions on the law the unsolicited protectors imposed the Common Law on the Protectorate and made laws that purported to legitimize their illegal dealings. According to Brennan,
“The common law itself (with its feudal doctrine of tenure) took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the imperial authorities without any right to compensation, and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standards,
4 See Standard Digital News – Kenya : Kenya : Coast land problem a disaster in waiting October 3rd 2012
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such a law was unjust and its claim to be part of the common law … must be questioned” (1993, p. 219).
The Land Acquisition Act of India (1894) was extended to Kenya and used to appropriate all the land situated within one-mile of either side of Uganda Railway for the construction of the railway as well as compulsory acquisition of land for government buildings in 1897 by the Commissioner of the Protectorate (Okoth-Ogendo, 1991). In 1902, all land within the protectorate was declared Crown land whether or not the land was reserved for the natives or occupied by the same which in effect made all Africans become tenants of the Crown (Okoth-Ogendo, 1991). According to Okoth-Ogendo (1991), Crown land was defined as all public lands within the East African Protectorate that for the time being were subject to the control of His Majesty by virtue of any agreements or treaties, and all lands that had been or may have been acquired by His Majesty under the Land Acquisition Act of 1894.
The Crown Lands Ordinance No. 21 of 1902 gave powers to the Commissioner to identify and sell free hold land to desiring European settlers without giving due cognizance to customary and indigenous land tenure systems (Kanchory, 2006). Further, in 1915 the Land Ordinance empowered the Commissioner to give the European settlers freehold leases of up to 999 years without due consideration of the Africans natives who inhabited the same lands. According to Mortensen (2004), by 1914 nearly five million acres (two million hectares) of land had been taken away from Kenyan Africans, mostly from the Kikuyu, Maasai and Nandi communities (Okoth-Ogendo, 1991). Legal segregation through fixing of boundaries of the Native Reserves and the White Highlands as recommended by the Report of the Kenya Land Commission (1934) effectively removed the Africans natives from the White Highlands and gave the European settlers assurance of permanency on their new settlements (Syagga, 2011). By restricting the movement of the Indigenous communities and denying them access to their natural habitat amounted to clear infringement of the rights by the Imperial regime. The Crown Ordinance, which regulated how government land was to be distributed, gave powers to the Governor and without consultation to distribute the land through auctions to individuals and corporations for development (Okoth-Ogendo, 1991). The removal of the Natives from their ancestral land in the East African Protectorate to create room for European settlement was the driving force behind the Africans struggles for independence as well as the beginning of land related conflicts in what later came to be known Kenya after the attainment of independence in 1963 and thereafter.
3.0 THE 1904 AND 1911 MAASAI AGREEMENTS
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The British having found the Maasai weakened by inter clan war and both human and livestock diseases, used the opportunity to convince the Maasai to sign agreements to move from their traditional lands to give room for European settlement in 1904 and 1911 (Sanford 1919). The agreements were signed by Lenana and other Maasai representatives which facilitated the Maasai moves to two reserves guaranteed to them so long as the Maasai existed as a race (Morgan, 1960; Hughes, 2006b). According to Saibul and Carr (1981), the British tricked the Maasai after they were weakened by civil wars and droughts; they claimed that the Maasai Laibon 5(Oloiboni) Olonana, had signed an agreement in 1904 and 1911 with His Majesty’s Commission for the East African Protectorate, giving away Kenya to the British. According to Hughes (2006a), the agreements between the Maasai and the British settlers were that the Maasai shall keep the land in the reserves for as long as the Maasai existed as a race. This was not to be case for the Maasai since the real reasons for the scramble for Africa and the subsequent partitioning and colonization were economic and not strategic as has been argued by some apologists; land as an important aspect of the agro-industrial economy of the time was top on the list of the Imperial agenda (Kanchory, 2006). Driven by demand for more land due to the influx of white settlers, the British abrogated the rules of engagement between the Maasai and the colonial office by demanding more land for settlement in disregard of the initial agreements signed in 1904. The desire for more land for European settlement and to reign control over the Maasai by concentrating them in one reserve led to another forceful eviction at gun point from the northern reserve in in 1911 through the second Anglo-Maasai agreement. The problem of the dispossession was expressed well in a memorandum by the Maa Civil Society Forum presented to the Kenya government and the British High commission in Nairobi on August 2004 (MCSF, 2004).
While Sorenson gives detailed accounts of how the Kikuyu were in forefront of social and political developments in Kenya (Sorenson, 1967), Hughes accounts of how the Maasai were disposed of their land provides a more accurate and a different perspective from other previous literature. Mungeam who was among the earliest writers of colonization in Kenya (Mungeam, 1966), his accounts were based on people and events, and stereotyped accounts of early explorers to East Africa and therefore did not reflect the general perspective as perceived by the Maasai. According to Hughes (2006), this forced move occasioned the displacement of over Twenty thousand
5 Contrary to common beliefs today, that depict Oloiboni as a witch, traditionally Oloiboni was seer who was the equivalence of a prophet. Olonana had the jurisdiction over only two Maasai clans (Iloshon), the Keekonyokie and Purko but was consulted by Ildamat. His mandate did not include the making of covenants regarding land and other traditional resource ownership and control. This therefore invalidates all agreements that he entered into as regards to Maasai land rights.
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people and two and a half million livestock to create room for more European settlement. Other motives that necessitated the move were the need for an elaborate taxation system which was only possible if the Maasai were concentrated in one manageable geographical area and the need to prevent the European settlers’ imported livestock from being infected by diseases from the indigenous stock that the Maasai kept (Hughes, 2006)6.
The Maasai moves had psychological, social, and economic impacts on the general lives of the Maasai community. The Maasai lamented that land that they were to move to in the Southern Reserve was cold and infested with East Coast Fever (ECF) which killed their livestock in thousands7. The death of the livestock rendered many families poor and dependent on the goodwill of the local Maasai who lived in the Reserve. The climate was cold and many people died out of pneumonia as they crossed the Mau ranges towards the warmer southern slopes of the Mau and the Loita plains where most of the Purko settled8. The social community fabric which provided for social support mechanism was severed, and traditional, and religious rites which were collectively performed could no longer be held at the shrines. This had a very negative psychological impact on the Maasai people as a whole, demoralized them and rendered them vulnerable. The Maasai describe the moves to the Southern Reserve as a deliberate move by the Imperial regime to send them to Ngatet9 to go and die from Oltikana (East Coast Fever), Olodua (Rinderpest), and Entidiyai (Malaria). Lack of medical and veterinary services contributed to loss of life to the Maasai population as well as their livestock, and weakened the Maasai economy and strength to fight back or resists further European aggression.
4.0 CONTESTING THE AGREEMENTS
In order to understand the impact of land appropriation in Kenya, it is important to review literature on how such appropriation has been challenged by the affected communities and opportunities that may be
6 Oral narratives state that despite the Europeans version of the agreement that state that the 1911 agreement was signed by Olonana, the agreement was signed by Olonana’s son Seki using Olonana’s prints after Olonana had died at Enchoro-Emuny (currently Ngong). It is also said that Olonana had refused to engage with the European settlers and that his death was occasioned by laced biscuits that were offered to him by a white man who visited him at his home in Ngong.
7 East Coast Fever commonly known in the Maasai language as “Oltikana” is a tick borne disease that had no treatment. One of the reasons for creation of the Maasai Reserve was to make sure that their cattle were not infected by the local breeds kept by the Maasai hence their movement to the Southern Reserve bordering the other Maasai tribesmen in Tanganyika.
8 Oral testimonies have it that children and the elderly were the most affected by the cold and many did not make to cross the Mau. Some families that never managed to cross were later employed by the white settlers as herdsmen on the occupied lands.
9 Ngatet is the present Narok County which was known for be inhabitable and was infested with human and livestock diseases that decimated both human and livestock populations
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available for them to use in seeking redress. Atuahene (2009) argued that seeking redress for historical land theft has always been a volatile political issues. This is evident in Kenya in the way the report by the Truth Justice and Reconciliation Commission has been handled. Since the completion of the report and subsequent submission to the president, the government of Kenya has given conflicting signals on whether it will be made public as it was drafted or make changes to accommodate the interests of the political elites who were adversely mentioned by the report.
Seeking legal redress for land dispossession, evictions and human rights violations in Kenya is not easy given the political intrigues that are involved and the fact that the development of Kenya’s common law has long been influenced by case law from other common-law jurisdictions (Wachira, 2008). While it is a known fact that the Maasai were the first Kenyan Indigenous community to use legal processes to challenge the British colonial regime, and given the outcomes of the case, it is evident that without an independent judicial system that is free from political influence the Maasai case has several challenges10. In order to understand and contextualize local and international human rights instruments and their application in the Maasai claims, such instruments will require legal and constitutional interpretation that will apply in the Kenyan context.
4.1 Local Instruments
According to Wachira, the current Kenyan legal framework has the potential to redress the Maasai land claims if it is progressively interpreted in keeping with international standards (Wachira, 2008). The Constitution makes provision for rights whose enjoyment demands recognition and protection of group rights11 as well key clauses that protect the rights of individuals and marginalized groups 12 (ROK, 2010). As drafted, the Kenya’s new Constitution gives the National Land Commission the mandate to manage public land on behalf of national and county governments, among other functions [(Section 67). (ROK, 2010)].The incorporation of the National Land Policy in the Constitution and the enactment of laws on land by parliament is seen as an opportunity that will eradicate legal roadblocks that have hindered the implementation of recommendations made by the Njonjo Land Commission13 (ROK, 2002), and the Ndungu Report 14(ROK, 2004). The commissions were formed to investigate
10See Ole Njogo and 7 others v. The Honorable Attorney General and 20 Others. Civil Case No. 91 of 1912 (E.A.P. 1914), 5 E.A.L.R. 70 [East Africa/Kenya], pp. 36, 86-90, 181, 181n599, 187, 190
11 See Sec. 82 on non- discrimination and Chapter ix on Trust Lands.
12 See Secs. 70-83 Constitution of Kenya.
13 Report of the Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy, Framework, Constitutional Position of Land, and New Institutional Framework for Land Administration.
14 Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Ndung’u Commission).
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issues related to the legal structure of land laws and historical injustices on land. Another constitutional provision that provides an opportunity for the Maasai to seek redress is the Land Court which is enshrined in the Constitution (ROK, 2010). The Land Court will be expected to adjudicate cases related to land disputes arising from claims filed by the communities which have grievances related to land ownership. Since the new constitution took effect in 2010, the Maasai community has filed several cases in various courts in Kenya some which have been decided in their favor but most are yet to be concluded.15
While the promulgation of the Constitution of Kenya 2010 is regarded as the most significant achievement in governance in Kenya since independence in 1963, full implementation of the letter and spirit of the constitution is crucial to realize the promise of a democratically stable and prosperous future for all Kenyans, deep seated interests pose threats or challenges to the implementation of the Constitution. Key challenges are evident in how some political elites want to maintain the status quo, reverse gains and manipulate the pace and nature of changes recommended in the new constitutional order. As is evident by recent actions and decisions by the president and parliament, there seem to be a reversal of gains on the areas of human rights, freedom of expression, and freedom of association where the Kenyan parliamentarians are working on amendments to muzzled freedom of press and the contact of Non -profit organizations ( Ogemba, 2013). This is definitely a challenge to the Maasai quest for justice and rights on their land given the fact that the political elite are beneficiaries of the land that the Maasai lay claim. Grievances of continued loss of land by the Maasai were vividly expressed in a memorandum submitted to the Truth Justice and Reconciliation Commission by the Maa speaking pastoralists in Kenya in January 2011 which outlined how land in Iloodoariak and Mosiro group ranches was illegally allocated to ineligible and non-residents of the said areas through illegal transactions by ministry of land officials in collaboration with the group ranch Committees.16
The challenge to contest land appropriation lies in the historical legitimatization of dispossessions through the retention and entrenchment of colonial land laws and policies in Kenya. This according to Wachira betrayed the people who fought for independence and those that had hoped to get back whole or parts of the land that was appropriated by the colonial regime (Wachira, 2008). Other challenges in pursuing the case are both legal, cost, and the time such cases have to take to be decided; a unified approach by the Maasai has also contributed to a slow
15 The Maasai Vs. Ngati Farmers (Olmara) where the Maasai were granted five thousand acres of land and the PCEA V. the Maasai (Olooseos) where the Keekonyokie Maasai in Kajiado County were able to revert the land title to the local community are such cases that have been decided in favor of the Maasai.
16 Mainyioto Pastoralist Integrated Development Organization: A memorandum submitted by the Maa speaking pastoralists’ community to the Truth Justice and Reconciliation Commission at Kajiado on January 2011.
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process which has often resulted in conflicts between the political leaders and those in civil society who have been fronting for the case, and the unfriendly political climate has also put the Maasai human rights activists on a confrontation with the government which has led to intimidation, imprisonment and death of some of its members. Another phenomenon that has bedeviled the cause is the commodification of the process by some Maasai non-profits who have resulted to use the Maasai predicament as a cash cow to raise funds which in many instances have not been directed to the Maasai cause.
4.2 Regional Instruments
4.2.1 The East African Court of Justice (EACJ) The East African Court of Justice (EACJ) is a treaty-based judicial body of the East African Community tasked to ensure adherence to law in the interpretation and application of and compliance with the East African Community Treaty of 1999. The Court is made up of two divisions: a First Instance Division and an Appellate Division. The Court has jurisdiction over the interpretation and application of the Treaty and may have other original, appellate, human rights or other jurisdiction upon conclusion of a protocol to realize such extended jurisdiction. Reference to the court may be by Legal and Natural Persons, Partner States and the Secretary General of the community. Given that the court does not require that litigants exhaust local mechanisms before filing claims, the Maasai can leverage its existence where Kenyan courts have failed to address their claims.
4.2.2 African Commission on Human and Peoples’ Rights (ACHPR)
The African Charter established the African Commission on Human and Peoples’ Rights and was inaugurated in 1987. The African Commission on Human and Peoples’ Rights is a quasi-judicial body that monitors the implementation of the African Charter on Human and Peoples Rights (ACHPR. 1986). Depending on who files suit, the court has mandatory jurisdiction, which every state automatically acknowledges on ratification of the Protocol. It also has discretionary jurisdiction, for which a corresponding additional declaration of recognition of jurisdiction is required. Kenya is among the 53 states that have ratified the Protocol. In addition to performing any other tasks which may be entrusted to it by the Assembly of Heads of State and Governments, the Commission is officially charged with three major functions namely the protection of human and peoples' rights, the promotion of human and peoples' rights, and the interpretation of the African Charter on Human and Peoples' Rights.
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The African Commission on Human and Peoples’ Rights has already set a precedence in the ruling of the Endorois case which was approved by the African Union in January 201017 and the recent case filed by the Ogiek People Development Program which was heard in Addis Ababa on November 27th and 28th. The possibility for the Maasai to use the African Commission on Human and Peoples’ rights will depend on how the Maasai will organize themselves and develop a consolidated front to pursue their case.
4.2.3 International Instruments
Since independence, Kenya has signed and ratified over 49 treaties and acceded to about 87 others. The treaties relate to the United Nations, Humans Rights, African Charter, Refugees, International Humanitarian Law, Narcotics, Trade, Transport and Communication, Civil Aviation, East African Community, Law of the Sea and many others (ILO, 2012). The 2010 Constitution of Kenya contains a provision in Article 2(5) 2(6) stating that:
……..“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” (ROK, 2010, p.14). In terms of Article 261 (1 & 4) and the 5th schedule of the Constitution the Ratification of Treaties Bill, 2011 has been submitted to the Attorney General for drafting and subsequent publication (ROK, 2010). The Bill is for an Act of Parliament to make provision for the ratification and domestication of international instruments and for related matters18 (ROK, 2010).
4.2.3.1 ILO Convention No. 169 on Indigenous and Tribal Peoples
Convention No. 169 of the International Labor Organization (ILO) provides a set of subjective and objective criteria, which are jointly applied to guide the identification of Indigenous peoples19 (ILO, 1989). The Maasai by virtue of their unique cultural practices and attachment to their land have been identified as Indigenous
17 See more at: http://www.minorityrights.org/9587/press-release/landmark-decision-rules-kenyas-removal-of-indigenous-people-from-ancestral-land-illegal-html#sthash.QhFxFgwA.dpuf
18 Whereas the Constitution stipulates that all international treaties and conventions ratified by Kenya form part of the law of Kenya most treaties and conventions require the state to domesticate the treaty or convention before it can become law in that Kenya. 19 See C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169). Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 05 Sep 1991) Adoption: Geneva, 76th ILC session (27 Jun 1989) - Status: Up-to-date instrument (Technical Convention).
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People20. The International Labor ratification, which deals specifically with the rights of Indigenous and tribal peoples. Once it ratified by a country, the country has one year to align legislation, policies and programs to the Convention before it becomes legally binding (ILO, 1989). Countries that have ratified the Convention are subject to supervision with regards to its implementation. The Convention recognizes and protects tribal peoples’ land ownership rights, and sets a series of minimum UN standards regarding consultation and consent (ILO, 1989).
The International Labor Organization Convention Number 169 Article 14 and Article 15 give the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized (ILO, 1989. Art. 14). In addition article 14 provides measures that shall be taken in appropriate cases to safeguard the right of the peoples’ concerned to use lands not exclusively occupied by them, but to which they have traditional activities. It calls for particular attention to be paid to the situation of nomadic peoples and shifting cultivators in this respect21, and urges governments to take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession through the adoption and establishment of adequate procedures within the national legal system to resolve land claims by the peoples concerned (ILO, 1989. Art. 14). In Article 15, the convention provides for safeguards for natural resources pertaining to indigenous peoples’ land and territories including the right to participate in the use, management, and conservation of such resources (ILO, 1989. Art.15)
The ILO Convention NO 169 can play a big role in arguing the Maasai case in any local court of law or policy environment. By stating that people have rights for and protection on lands that they historically and currently hold, and in the light of the provisions of the current constitution, the Maasai have a chance of framing their case (ROK, 2010). This will require translation of the provisions of the convention into Kenya’s legal instrument which in itself will require a judicial system that recognizes and appreciates international human rights instruments.
20 The Convention uses the inclusive terminology of “indigenous and tribal peoples” and ascribes the same set of rights to both groups of people that have historically maintained their cultural practices and language despite the influences of globalization.
21 Kenya is yet to ratify the ILO Convention No 169 and will require that legal minds and the Maasai as practitioners and litigants must determine their legal position by first going through the Kenyan laws and then verifying the law through the maze of virtually unknown treaties tucked in various government departments.
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4.2.3.2 The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The Maasai are globally recognized and considered as an Indigenous people due to their unique way of life, culture and relationship with their land. The lack of recognition of their traditional land use practices by national legal frameworks has contributed to continuous appropriation of their land as well as other natural resources. According to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), Article 26 provides recognition of Indigenous Peoples’ as having the right to own, develop, control and use the lands and territories, including the total environment of their land, air waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of the laws, traditions and customs, land tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation or encroachment on these rights’ (UN, 2008)22.
While Kenya has not ratifies the United Nations Declaration on the Rights of Indigenous People (UNDRIP), there are relevant provisions within the law that could be invoked to give legal credence and meaning to Indigenous peoples’ land and resource rights, the legal framework is generally inadequate with regard to protection of these communities but the law can be adequately interpreted as well as other case laws adopted to file claims of land appropriation.
4.2.3.3 International Covenant on Civil and Political Rights (ICCPR)
Even though Kenya has ratified the International Covenant on Civil and Political Rights (ICCPR)23 , and despite the entrenchment of the clauses regarding domesticating all international treaties in the new Kenyan constitutional dispensation, this may prove a challenge as well as an opportunity depending on the degree of independence of the judicial system in Kenya (ROK, 2010).
22 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 53 (A/61/53), Part One, Chap. II, sect. A.
23 See the International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly in 1966 and entered in force on 23 March 1976, 999 UNTS 171.
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4.2.3.4 Case laws Case laws are a set of laws that are established by following earlier judicial decisions and are based on judicial precedents rather than statutory laws of any country or state.
Such cases that may have a bearing on the Maasai case include the cases in Kenya like the Environment and Land Court at Nairobi (ELC) Civil Suit no. 821 of 2012 (OS)24 (Kenya Law Review, 2014); the African Commission on Human and Peoples Rights (ACHPR) and the Endorois case; 25(ACHPR, 2009); Australia, such as Mabo v Queensland (No 2) (1992) 175 CLR 126; John Cecil Clunies-Ross v. The Commonwealth of Australia, Thomas Uren and John Joseph Brown (1984) HCA 65; 155 CLR 19327, and Gerhardy v Brown (1985) 159 CLR 7028; Botswana, Sesana and others v Attorney General (52/2002) (2006) BWHC 129; some examples in Canada that can be cited are for instance Chippewas of Sarnia Band v. Canada (Attorney General), 195 D.L.R. (4th) 13530, and Tsilhqot'in Nation v. British Columbia 2014 SCC 4431.
While the above mechanisms may be instrumental in the Maasai case in either seeking justice or putting a stop to the increasing land loses, the greatest challenges lie in the individualization of land titles; commodification of what was once community land; increase of non-pastoralists land use systems, and lack of a supportive national policy. The interpretation of legal instruments by the judiciary and domestication of international legal statues will also contribute either as helping factors.
24 See Joseph Letuya & 21 others v Attorney General & 5 others [2014] eKLR. 25 See 276/03 Centre for Minority Rights Development (CEMIRIDE) Kenya and Minority Rights Group (on behalf of Endorois Welfare Council).
26 See Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) 27 See John Cecil Clunies-Ross v. The Commonwealth of Australia, Thomas Uren and John Joseph Brown
[1984] HCA 65; 155 CLR 193. 28 See Gerhardy v Brown (1985) 159 CLR 70. Under the Pitjantjatjara Land Rights Act 1981 (SA) a large area of northwest South Australia was granted to the Pitjantjatjara people. They had unrestricted access to the land but non-Pitjantjatjaras required permission to enter the land (section 19). Mr. Brown went onto the land without permission and, when charged with an offence, argued that the South Australian Act was inconsistent with the RDA and consequently invalid.
29 See Roy Sesana and Others v. The Attorney General, (52/2002) [2006] BWHC 1, para. 55(7) 30 See The Chippewas of Sarnia Band v. Attorney General of Canada et al. [Indexed as: Chippewas of Sarnia Band v. Canada (Attorney General)] 51 O.R. (3d) 641 [2000] O.J. No. 4804 Docket Nos. C32170, C32188 and C32202 Court of Appeal for Ontario Osborne A.C.J.O., Finlayson, Doherty, Charron and Sharpe JJ.A. December 21, 2000.
31 See Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), http://canlii.ca/t/g7mt9 retrieved on 2014-10-02.
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5.0 CONCLUSION
While this study was to analyze the impact of land dispossession and contestation by the Maasai in Kenya, it should be noted that many Kenyan communities starting with the Giriama, Pokomo, and Taita at the Coast, the Kikuyu in the Central highlands, the Nandi in the Nandi escarpment and the Luhya and Pokot in the western highlands have land dispossessions claims that have often resulted in ethnic conflicts. Ethnic clashes that have characterized Kenya every election since 1992 have been associated with communities perceiving other migrants to their ancestral lands as a threat to their political and economic dominance. Numerous land related legislations and policies that have been in place have contributed to skewed, unpopular decisions that have fueled land related conflicts in Kenya. These policies generated land-related conflicts that have an indelible mark on the future of Kenya. It is also of great importance to note that other land-related conflicts in Kenya have manifested themselves in human-wildlife conflicts which came to being through the adoption of wildlife management and conservation arrangement policies that alienated large tracks of lands form communities through legal gazettemets that converted community land into trust lands, national parks, national game reserves, forest, and conservation sanctuaries
The Maasai people have been victims of historical, economic and political marginalization. Their pastoral economy has not been fully mainstreamed into the national economy despite its great potential. They have been subjected to acute land loss and misuse, right from the dawn of colonialism in Kenya. Whereas during the colonial era their lands were routinely appropriated because their nomadic and pastoral lifestyle did not require the cool lands better suited for agriculture, in independent Kenya, the Maasai have become victims of the much touted “willing-seller-willing-buyer” capitalist theory. The combined result has been massive loss of land, virtually rendering the affected people destitute. At the root of this serious plight has been widespread ignorance amongst the affected communities regarding their land rights and the obligations they have to ensure good land tenure and environmental management. The overall goal of the Maasai land claims initiative is to redress historical injustices and wrongs perpetrated against the Maasai as a community, particularly with regards to their land rights. The historical wrongs and injustices are traceable to the establishment of European settlement in the territory that is now Kenya. They were therefore first perpetrated by the colonial administration, and later compounded by the policies of the independence African government. It is important to emphasize from the outset that the claims by the Maasai are primarily against the state, both colonial and post-colonial, even if portions of the lands in claim may presently be occupied by specific individuals (Koissaba, 2012, pp.13).
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In order to realize the overall objective stated above, the Maasai land claims initiative pursued the following three specific objectives; to claim for restitution of Maasai ancestral land appropriated by the British colonial government and or the Kenya government, as well as adequate compensation for the use of those lands to-date; to claim damages in compensation against the British government for loss of lives, injuries and loss of livestock and property occasioned by the mass eviction of the Maasai from their ancestral lands as a result of the 1904 and 1911 Agreements; and to claim from the Kenya government compensation as well as the right to share in benefits derived from the use of ancestral lands and natural resources situated in those ancestral lands (Koissaba, 2012, pp.14)
The appropriation of land from the Maasai, first by the Europeans colonialists to make room for white settlers and then by the independent Kenyan government, through cultural insensitive laws and land policies, raises tremendous issues of social injustice. The injustice occurred partly from the misuse of laws and administrative directives to dispossess the Maasai as well as from the suffering caused by the loss of access to those resources which the tribe relied upon for its livelihood. The Maasai have been denied access to their traditional rights to grazing, water and salt licks within the enclosed national parks and game reserves and other appropriated lands. Corruption and impunity in the political echelons coupled with out- right greed for land by the elites has led to thousands of poor families, widows, and children despite having rights to their inheritance in form of land. The Maasai in Kenya have consequently, suffered sharp declines in their livestock numbers from the stress of reduced forage and a deterioration of their quality of life. Their social and cultural units have disintegrated or have been extinguished in some areas, and their general welfare has been ignored.
While the new Constitution gives the National Land Commission the mandate to manage public land on behalf of national and county governments, among other functions, the Constitution is silent on how the Commission will discharge its mandate of ensuring that access, ownership and control is brought to acceptable levels at policy and implementation level. This arises from the complexity and nature of political, economic, and ethnic based interests in the land sector in Kenya. While the Maasai and other communities that have land related claims look upon the National Land Commission as a panacea for their grievances, the independence of the commission from political and ethnic machinations will determine its success in solving the myriad of land related problems. The need for the legislating of laws to protect the integrity of the Commission, and participatory non-coercive processes are of great importance if the Commission has to undertake the herculean task of restoring
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confidence to the citizens. While the Constitution is clear on the provisions of law that protects the rights of the people regarding the ownership of land, there is need for the government to ensure that the land sector is free from the possibilities of being hijacked by the political elites who have vested interest in the land. This can only be possible if the appointees to the commission have security of tenure as well as the existence of laws to guard against impunity in the sector.
While Constitutional provisions are provided on compulsory acquisition of property for the public benefit, such expropriation by the state must be in accordance with established legal frameworks, and upon payment of prompt and commensurate compensation for land that was expropriated32. It is in the light of these Constitutional provisions enshrined in the new constitutional dispensation that the Maasai want to seek redress for both historical and contemporary injustices on the land. It is hoped that the National Land Commission will expedite decisions already filled by the Maasai on various lands that despite having historical claims, other non-Maasai communities have entitlements through assurance of titles through presidential decrees or corruption in the Ministry of lands
The existence of case laws on the rights of Indigenous people globally and the precedence set by the ruling of the African Commission on Human and Peoples’ Rights on the Endorois case in Kenya (MRG, 2010), the Universal Declaration of Human Rights33, which was adopted by the UN General Assembly on 10 December 1948, and other international human rights treaties that Kenya has ratified are other options open to the Maasai human rights movement in pursuing their case.
The main challenges in pursuing the case are both legal, cost, and the time such cases have to take to be decided. The challenge of a unified approach by the Maasai has also contributed to a slow process which has often resulted in conflicts between the political leaders and those in civil society who have been fronting for the case. The unfriendly political climate has also put the Maasai human rights activists on a confrontation with the government which has led to intimidation, imprisonment and death of some of its members. Another phenomenon that has bedeviled the cause is the commodification of the process by some Maasai non-profits who have resulted to use the Maasai predicament as a cash cow to raise funds which in many instances have not been directed to the Maasai
32 Sec 82(c) Constitution of Kenya.
33 See www.un.org/en/documents/udhr/.
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cause. Being a very sensitive issue, the cause has been used by people with political ambitions to get to political positions where they get compromised by other political elites who have vested interests on the land34.
It should also be noted that other communities in Kenya have land related grievances
While there is adequate evidence on the herculean task and risks the civil society has to overcome, it is the hope that the National Land Commission will live to the expectation of Kenyans and deliver justice to the citizens. It is also hoped that with the current reforms being undertaken at the Judiciary, the courts will have the independence to make judgments that are free from political influence. It is also the expectations of the citizens of Kenya that the NLC will learn from other countries’ experiences on reparation and compensation for communities that have lost land (Dalton, 2012)
34 Some Maasai serving in the current government which has set history by having the largest number of Maasai representatives at all levels of government used the platform of land rights to ascend to their political positions.
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